The High Court has the power under Section 482 of the CrPC to quash a proceeding where there is absolutely no material to initiate the proceeding against the accused, and the bar under Section 397(2) of the CrPC does not apply to cases where the court lacks jurisdiction or where the order is not interlocutory in nature.

JUDGEMENT

Order:- The seven petitioners are members of the second party in a proceeding under S. 107 of the Cri. P. C. before the City Magistrate of Cuttack and have been called upon to show cause why there should not be an order requiring each of them to execute a bond for rupees one thousand for keeping peace for a period of one year. This application under Ss. 401 and 482 of the Cri. P. C. has been made for quashing the said proceeding on the ground that there is absolutely no material for the satisfaction of the City Magistrate that the petitioners be proceeded against under S. 107 of the Code,

2. The learned Additional Government Advocate raised a preliminary objection that the impugned order is of interlocutory character and in view of the bar under sub-sec. (2) of S. 397 of the Code, the revision application is not maintainable under S. 401. Mr. Patnaik for the petitioners has taken the stand that the application is essentially one under S. 482 of the Code and mere mention of S. 401 may not be permitted to be relied upon for sustaining the preliminary objection. According to him, the application under S. 482 of the Code is maintainable notwithstanding S. 307(2) of the Code if petitioners, are able to satisfy this Court that there is absolutely no material for initiating the proceeding against them.

3. It is appropriate that at this stage the facts are recapitulated. Petitioners are members of the Cuttack Mini Bus Owners' Association. They ply their buses on different routes from the bus stand at Badambadi in the outskirts of Cuttack Town. Members of the first party are owners of Contract Carriage Vehicles. Dispute arose between the parties over picking up of passengers for their respective vehicles. The local police sent a report to the learned City Magistrate recommending initiation of a proceeding under S. 107 of the Cr. P. C., Therein, it was alleged :-

"Today (10-7-77) at 9 A.M. A.S.I. A.C. Samantaray reported me that yesterday he had duty at Badambadi bus stand where he found sl. 6 of second party (Babji Charan Behere) hawking for a vehicle before time and diverting the passengers of another Mini bus scheduled to leave the stand. When this was opposed by sl. 3 of 1st party, the former abused the latter for which he was assaulted by the latter. Thereafter the latter also assaulted the former and over this issue there was commotion. Since some of the owners intervened in the matter, the A.S.I. entered the fact in station diary vide station diary entry 323.

On perusal of station diary for 9-7-77, I found sl. 1 of second party (Debendra Narayan Das) has reported vide station diary entry No. 313 that he was assaulted by Pagli, Talana and others.

I could come to know from a source that situation at Badambadi is tense due to ill-feeling between members and office-bearers of Mini Bus Owners' Association and Mini Bus Workers' Association. The report thereafter narrated certain events which did not implicate any other person except Babaji Charan Behera, Copies of the station diary entries bearing Nos. 313 and 323 as also 335 were sent along with the report.

4. According to Mr. Patnaik, accepting all the allegations to be true, no case at all has been made out against the petitioners excepting Babaji Charan Behera. He, therefore, contends that the learned Magistrate has acted without basis in starting a proceeding against the remaining six petitioners and if the proceeding is made to continue they would be unnecessarily harassed. In the case of Delhi Development Authority, New Delhi v. Smt. Lila D. Bhagat, AIR 1975 SC 495 : (1975 Cri LJ 435), the learned Judges were considering the ambit, and scope of S. 561-A of the old Cri. P. C. of 1898. In para 7 of the judgment, the Court observed:- (at p. 437 of Cri LJ)

"...In an appropriate case it may be, rather, is, permissible to protect a person from illegal and vexatious prosecution by grant of an appropriate writ or in exercise of the inherent or revisional powers of the High Court......